Disorders Impacting Brain Health, P2

Welcome to Season 4, Episode 39 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Disorders Impacting Brain Health, P2."

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, explores disorders impacting brain health, and how they operate within an ERISA disability claim. Brain-related disorders can significantly impact an individual's ability to work and lead a fulfilling life. Understanding how to navigate ERISA (Employee Retirement Income Security Act) disability claims involving these conditions is paramount. Our last episode on this topic focused on generalized brain health disorders. Today, however, Nancy will walk through some more specified examples of illnesses impacting the brain, giving specific information for each condition. Stay tuned to learn all about disability claims for brain-related medical issues.

In this episode, we'll cover the following topics:

1 - The Impact of Gaps in Treatment in Your Traumatic Brain Injury ERISA Disability Claim

2 - Bradykinesia and Your ERISA Long-Term Disability Claim

3 - Parkinson's Disease Secondary to Solvent Exposure and Your Disability Insurance Claim

4 - Cognitive Problems and Your Thyroid ERISA Disability Insurance Claim 

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Nancy Cavey [00:00:11]:
 Hey, I'm national ERISA disability attorney Nancy Cavey. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar association says I have to tell you that and I've done that. But nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now we're going to be talking about brain disorders and disorders impacting brain health.
 
 Nancy Cavey [00:00:48]:
 I've done some episodes before, but I wanted to give you an update. I want to talk about a few more conditions that can have a severe impact on the brain and consequently cognitive and physical abilities, and then how that translates into an ERISA disability claim. Brain, cognitive, mental health, all of this is vital to our well being, not only in our personal life, but in our work life. I find the disability carriers often don't make it easy for people who have issues with brain functioning to get the disability benefits they deserve. Why is that? Well, often they'll try to apply something called the mental nervous policy limitation for brain conditions. And I'm going to be talking today about a number of brain based health conditions, how disability carriers handle these claims, and how to get the disability benefits you deserve. So first let's talk about the impact of gaps in treatment in your traumatic brain injury in an ERISA disability claim. Next, I'm going to talk about bradykinesia and your ERISA long term disability claim.
 
 Nancy Cavey [00:01:53]:
 I'm going to talk about Parkinson's disease secondary to solvent exposure and your disability claim. And I'm also going to talk about cognitive problems and your thyroid or risk of disability insurance claim. Let's take a break before we get started with this episode. Welcome back. We're going to talk about the impact of gaps in treatment in your traumatic brain injury or risk of disability claim. Now, I'm sure you know that accidents are the leading cause of traumatic brain injury and they give rise to not only ERISA disability claims, but Social Security disability claims. I will tell you as an experienced brain injury, ERISA disability and Social Security lawyer, one of the things that I find problematic are gaps in medical treatment. So I'm going to illustrate this problem and how disability carriers and courts can react to this gap in treatment.
 
 Nancy Cavey [00:03:05]:
 So this is the story of Claude Ossion, a project manager who worked for Greenberry Industrial. In 2019, he hit his head on a piece of metal while vacuuming his truck at a car wash. But he continued to work until 2021. He, he claimed he had traumatic brain injury, headaches with migraines, mild neurocognitive disorders, tinnitus, imbalance, emotional instability and insomnia. His employer approved his short term disability carrier, but claim rather but then denied his claim for long term disability on the basis that he did not meet the policy definition of disability. Now, before you stop working, apply for benefits, please get out that disability insurance policy or plan and read it cover to cover because there are definitions in these policies that can limit the payment of benefits. The carrier in this case took the position that the medical records did not support any significant head injury, that the onset of his impairment was really inconsistent with what was in the medical records and that the claim of disability was based on self reported symptoms alone. They said, hey look, there's no loss of evidence of consciousness, no interior grade amnesia, no retrograde amnesia, no medical attention at the time of the accident, there's no clear findings on the mri, there's no clear findings on pathology on an electroencephalogram.
 
 Nancy Cavey [00:04:32]:
 And by the way, you continue to work post injury and we think there are signs of somatic symptoms disorder. That's a lot of basis or reasons for a denial, isn't it? But this type of denial and this kind of language is not uncommon. You can imagine that this case ends up in federal court. But what was interesting in this case was where the court went off as opposed to where the disability carrier went off. Even though one of the claimed reasons for the denial was not the frequency of treatment the judge went off on that particular issue. Now I will tell you, many disability plans do require that you get appropriate reasonable medical treatment. And in this particular case, that was the basis of the judge ultimately upholding the denial of this claim. The judge obviously is going to look at the medical records and if you're not getting medical treatment, there has to be an explanation as to why you're not getting treatment.
 
 Nancy Cavey [00:05:43]:
 Now in handling traumatic brain injury cases, I do see this quite frequently because the individual will deny that they have any cognitive issues as a result of the tbi. They are in denial when unfortunately and often people around them know they're having cognitive issues. So there is this refusal to get treatment, which I think is in part based on the nature of the injury. But in any event, in this case, the judge noted there was a gap in the treatment history and the treating physician was opining that ASEAN could not do his occupation as a project manager, despite the fact that during the time that Allegedly, he couldn't do this occupation. He was in fact doing his occupation. So this gap in treatment while he was doing this occupation, combined with an opinion of the doctor that said he couldn't do his occupation, just was a whole muddle that the judge could not get through. So ultimately, the judge questions, what's the validity of the doctor's opinion that he couldn't work and they couldn't explain that. And as a result, the judge upheld the denial.
 
 Nancy Cavey [00:07:03]:
 But in my mind, this case illustrates three issues with TBI claims. And the first is, why is there a gap in the treatment when the claimant is working? Is it because he's not having any problems? Is it because he's refusing the treatment? And by the way, exactly what was he doing? Was he functioning at the level that he did function prior to hitting his head? What do the employer's records talk about his performance? What were his performance reviews? Also, this leads to the second issue, and that is, okay, well, what changed in his medical condition that led him to stop work and apply for disability benefits? Was he beginning to have symptoms that impacted his cognitive functioning, his ability to sequence, his ability to stay on task? Was he missing time from work because of the migraine headaches? That obviously needs to be explained. And it needs to particularly be explained if there are documentation, documents or records from the employer that show he's beginning to have problems functioning in the workplace. He might have been reprimanded, he might have been missing time from work, he might have had difficulty completing tasks on time or getting along with others. The records need to speak to this. And then the other issue is, does this lack of treatment contribute to the subsequent disability? Now, as I've said, it's not uncommon for people who have TBI to deny they have a TBI and to minimize any problems that they're having and as a result not get treatment. But when the person ultimately gets treatment, I think in any ERISA disability or even a Social Security claim, you've got to address, you know, what was the injury? What was the nature of the injury? Were they able to work? If they were able to work, what were they able to do or not do? Were they having problems performing work? What changed to allow them, to allow them to seek medical treatment or to have difficulty working? And what impact did this lack of treatment have on the subsequent disability? I think that these issues should be anticipated and addressed in every TBI claim. And as a result, in this case, since they weren't, the judge upheld the denial of his long term disability claim.
 
 Nancy Cavey [00:09:44]:
 I think that proof in a TBI claim is crucial and simply claiming you have a TBI that you can't work is not going to cut it. It really requires the skill of an experienced ERISA TBI attorney who can look at the medical records, look at the policy, take those records apart and anticipate, as I've indicated, just some of the many defenses that you're going to see a disability carrier raise to a claim. Got it. Let's take a break.
 
 Speaker B [00:10:15]:
 You've been robbed of your peace of mind by your disability insurance carrier. You owe it to yourself to get a copy of Robbed of your peace of Mind, which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:10:36]:
 Welcome back. BradyKinesia and your ERISA disability long term claim. Now, I'm often asked, can I get disability benefits for bradykinesia? The answer is yes. But let's back it up a little bit. Let's talk about what bradykinesia is so you understand ultimately what it is we need to prove. Bradykinesia is a brain disorder where the basal ganglion in your brain sends weak or miscoded signals that will cause involuntary slowing of your movement. Now, the most common location where that occurs is in your arms or legs. That can make it difficult to walk without shuffling.
 
 Nancy Cavey [00:11:19]:
 It can also make it difficult to pick up or lift objects. So you might have problems buttoning a button or tying a scarf or putting on your shoes. It does impact not only balance, but coordination. And any of these problems can make it difficult or impossible to perform your own occupation or any occupation. Now, clearly what you should do if you start to have any of these symptoms is to consult with your physician to see whether or not your condition has progressed to the point where you can no longer do the material and substantial duties of your occupation. But you also need to make sure that your doctor is going to support your claim and be willing to document your symptoms, your functionality, understand your occupation, and support your claim by filling out a form called Attending Physician Statement Forms. These are crucial to any ERISA disability claim, even a Social Security disability claim where we use residual functional capacity forms. We need to document the restrictions and limitations that you have.
 
 Nancy Cavey [00:12:26]:
 But you need to understand that it's also crucial that you get a copy of your disability policy or plan and review it. Why? Well, disability insurance benefits aren't paid based on a diagnosis. You want to understand what your policy or plan says. So you got to understand what's the definition of disability? What's the definition of occupation? What's the criteria for getting payment of benefits? Are there any subjective medical conditional limitations that would limit the payment of benefits to just two years? What kind of objective proof, if any, do you have to submit? You need to understand that before you stop work and apply for benefits. Now the next thing you should do is review your medical records. Why? Do you know what your medical records say about you and your bradykinesia? You might be surprised that your records don't explain the objective basis of the diagnosis, don't discuss the physical findings that support the diagnosis, don't properly record the history of your symptoms or the progression of your symptoms. Don't discuss the impact of those symptoms on your ability to work or activities of daily living, or don't even discuss your restrictions and limitations. That can be really problematic.
 
 Nancy Cavey [00:13:37]:
 And once you see those deficiencies in your medical records, you just might have to delay the date you stop work to clean up those records. You can see that filing a claim for a risk of disability benefits as a result of bradykinesia is really a matter of understanding your policy, your medical records. It's a matter of preparation and timing. And you don't want to pick the wrong date to claim that you're disabled if your medical records don't support your claim or your doctor doesn't support your claim. Got it. Let's take a break. Welcome back to Winning Isn't Easy. Parkinson's Disease secondary to solvent exposure and your ERISA disability insurance claim.
 
 Nancy Cavey [00:14:35]:
 Did you know that TCE is an organic solvent that's used as a cleaning agent? It's used for removing oils, greases and contaminants in machinery and aircraft. There is a strong association between the use of an exposure to TCE and the development of Parkinson's disease. So what is the nature of Parkinson's disease? PD is a chronic degenerative disorder of the central nervous system that impacts both the motor system and the non motor system. Early symptoms can include tremors, rigidity, slowness of movement, difficulty with walking, and these symptoms will normally emerge and develop slowly as the disease worsens. However, you may have non motor symptoms that include things with cognitive behavior, sleeping or sensory issues. Now, there is generally a long period of time from the occupational exposure to the organic solvent like TCE and the development of pd. How does this impact your disability insurance claim? Well, you may have purchased your disability insurance policy or plan through your employer or maybe purchased your own individual disability policy. But before you stop work and apply for benefits, it's crucial that you do two things.
 
 Nancy Cavey [00:15:51]:
 First, you got to attain a copy of that insurance policy or plan and read it cover to cover. What's the definition of disability? What's the definition of your occupation? What's the definition of. Is there a subjective medical condition limitation? Is there a mental nervous? Understand the four corners, if you will, of that policy or plan so you know what it is you have to prove. But next, you've got to look at your medical records, because often disability benefits are denied because the medical records don't develop the symptoms. The progression of the symptoms, the diagnosis, how those symptoms make it difficult, if not impossible, for you to perform your own occupation or any occupation. Now, this is where the policy definition is really important. Disability can be defined as the inability to perform your own occupation or the inability to perform any occupation. Normally, what will happen is benefits will be paid for two years for any occupation, I'm sorry, own occupation, benefits, and then the definition is going to change to an inability to perform any occupation.
 
 Nancy Cavey [00:17:02]:
 Now, that's really crucial because you need to understand that the definition of occupation is not ensuring your ability to do your job, but not only your ability to do your own occupation and to do any occupation. Both these definitions, own occupation and any occupation definitions are really crucial to understand. Sometimes the own occupation definition will say, well, it's not how you performed your duties for your employer or in your local economy or even your national economy. It was how this job is described in the Dictionary of Occupational Titles, which has not been updated since 1990. So you've got to work your way backwards from that dot job description to understand what that definition is so that you and your doctor can document what it is you can't do about the material and substantial duties of your occupation as that term is defined. Now, that has the same impact if you've got a residual disability provision in your policy. In other words, you may be able to work, but you have to have a certain loss of earnings and a certain loss of earnings as a result of the loss of certain functions of your occupation. Again, you need to understand this.
 
 Nancy Cavey [00:18:19]:
 Remember, of course, that the definition is going to change generally after two years to an inability to do any occupation. And once again, you need to understand what that means, because normally you will see language that says an inability to do any occupation by virtue of your education, training and experience. They're not talking about age. And what's important here is that the disability carrier is going to do an analysis of your restrictions and limitations as documented by your physician and by their peer review doctors to determine both physically and cognitively what it is you can do. And they're going to take that and try to fit it into a box to say, oh, well, by the way, you have certain skills that you have learned that you could take to other occupations. That's called a transferable skills analysis. And they will use that to try to reduce the amount. I'm sorry, to determine whether you're entitled to your own occupation benefits.
 
 Nancy Cavey [00:19:22]:
 Now, the question I get often is, can I appeal a wrongful denial or termination of my benefits? And the answer to that is yes. But what's more important here is that we not have denial or termination. You want to be working, in my view, closely with an ERISA disability attorney and filing your application and if the claim gets denied or benefits terminated, that you understand that you do have the rights to file an appeal. Disability policies or plans have different timelines and requirements, but generally the carrier or plan has to send you a letter detailing the reasons why the claim has been denied and the information that you need to submit about for the appeal. The appeal is the trial of your case, and you can lose that appeal by not treating it as such. So simply writing a letter that says I'm appealing isn't going to cut it. You definitely need to have the services of an experienced ERISA disability attorney to look at the policy, look at the claims file, look at your medical records, develop the necessary medical and vocational evidence, getting a statement from you, getting a statement from the doctor, maybe getting an fce, maybe getting some neuropsychological testing, and then writing a letter addressing the ERISA law as it applies in your particular circuit, explaining in detail why the termination or denial is incorrect. My appeal letters, by the way, are 25 to 65 pages long.
 
 Nancy Cavey [00:20:54]:
 And as I've said, simply writing a letter saying you're this is an appeal won't cut it. Simply sending in new medical records won't cut it. It has to be an organized, cogent explanation as to why that disability carrier's denial or termination is wrong. Got it. Let's take a break.
 
 Speaker B [00:21:13]:
 Are you a professional with questions about your individual disability policy? You need the Disability Insurance Claim Survival Guide for Professionals. This book gives you a comprehensive understanding of your disability policy, with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we're giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:21:53]:
 Welcome back to Winning Isn't Easy cognitive problems and your thyroid or risk of disability insurance claim. I'm sure you know if you've got a thyroid disorder, that this disorder can cause problems with your energy, with your concentration and memory. If your thyroid glands aren't functioning properly, you can experience symptoms like extreme fatigue, weight loss, weight gain, rapid heartbeat, hair loss, and those cognitive problems that can mimic mild dementia. So what are the cognitive problems that will result from a thyroid disorder? The cognitive problems that I will normally see include impaired reasoning and judgment, difficulty focusing and paying attention, memory problems, impairment of communication and language. Obviously, these cognitive problems can impact your executive functioning. What's executive functioning? Well, that's your ability to do such things as planning, controlling your impulses, making decisions. And I found that those problems can make it difficult, if not impossible, to perform a person's occupation, be it their own occupation or any occupation. So what do you need to know about claiming a risk of disability benefits as a result of a cognitive problem caused by a thyroid disorder? It is crucial that before you stop work and apply for benefits that you get a copy of that policy or plan and read it cover to cover.
 
 Nancy Cavey [00:23:16]:
 I want you to understand some very basic terms. What is the definition of disability? What's the definition of your occupation? Is there a change in the definition of disability from an inability to do your own occupation to an inability to do any occupation? What documentation do you have to submit to prove your entitlement to benefits? And crucially, what does the policy or plan require in terms of objective evidence of the diagnosis of the thyroid disorder? Does the policy or plan require objective evidence of cognitive impairment? So neurocognitive testing, the answer to these questions are going to impact your claim, and they're also going to impact the date in which you claim that you were disabled and will obviously impact whether or not your claim is paid or you remain on claim. What's the objective evidence defense that are used by disability carriers or plans in these types of cases? Now, many disability carriers, such as Lincoln National Life Insurance Company, known as Lincoln, are looking for a reason to deny or terminate benefits. And one of the reasons that they will do that is that they will claim that there's not any objective evidence of your disability, regardless of whether the plan or policy actually requires objective evidence. So let me tell you the story of Robert Lern, who was the regional director of the outpatient rehabilitation center at Centra Health. Obviously, he's involved in medical issues, right? Mr. Lern stopped working in 2017 because of symptoms of thyroid disorder and he was paid benefits for two years. And of course, at that point they said, we've had enough, we're not going to pay benefits.
 
 Nancy Cavey [00:25:03]:
 And what they claimed was that Mr. Lern no longer met the plan's definition of disability because there was no objective evidence of a decline in this cognitive functioning due to his wildly fluctuating thyroid levels. And I see this all the time, the thyroid levels will fluctuate and there's a decline in cognitive testing, and the carriers want to see a straight line, if you will, between the thyroid levels and the cognitive functioning, and it isn't always there. So what happens in this case? Well, obviously it ends up in federal court. Lincoln's attempt to require objective evidence was. I'll explain it in a minute. ERISA regulations require that disability carriers or plans perform what's called a full and fair review of the claim. They're not allowed to add extra requirements to a policy or plan in evaluating the claim, like requiring objective evidence if the policy or plan doesn't require it.
 
 Nancy Cavey [00:26:00]:
 So in this case, the court said, oh, no, no, no, no, look, you, Lincoln, may say that you're denying this claim because of a lack of objective evidence, but you, Lincoln, told Mr. Lern that objective evidence wasn't required, so you cannot have it both ways. But the court went on to say, look, I'm going to look at the medical evidence. And Lern has submitted ample objective evidence in the form of neurocognitive testing that showed the impaired attention and dysfunction. Now, one of the things we have to be careful about is that many times disability carriers will look at the mental status exams. The doctors perform cursory in the course of an examination, and they will say, well, there's no impairment of functioning. The person is oriented to, to place and time and space. That orientation basically issues are used by the carrier to say, well, they don't have any cognitive issues.
 
 Nancy Cavey [00:27:08]:
 And by the way, that cognitive testing is contradicted by this mini mental status exam that the doctor did when the patient walks into the room. Okay, so Lincoln not only said that, but they said, look, this neurocognitive testing that he's relying on doesn't have any validity measures. And the court said, well, we're not going to buy that one either because there was no evidence in this testing of symptom exaggeration or suboptimal effort. What about Lincoln's obligation to do that full and fair review that I mentioned they're required to do under the ERISA rules or regulations? Well, the decision making process has to be reasoned and principled. The court ruled that Lincoln had arbitrarily walled off consideration of the appeal, and they did that by failing to provide Lincoln's paper review physicians the whole claim. They didn't give these liar for hire doctors the whole medical records that included the period of time in which they paid benefits. So as a result, Lincoln's physicians only reviewed the records after the denial date, even though Lurn's thyroid fluctuations prior to that date had been found to contribute to lasting and sustained cognitive impairment by the doctors who had reviewed the claim earlier. Lincoln didn't also address the multiple affidavits submitted by Learn's friends and family that attested to his decline, and they didn't provide those to their reviewing doctors.
 
 Nancy Cavey [00:28:49]:
 So as a result, the court said, look, Lincoln did not engage with Mr. Lern's evidence and the medical opinions that his wildly fluctuating thyroid levels over years caused permanent cognitive decline. And as a result, the court said, too bad. So sad. You Lincoln failed to conduct a full and fair review of the evidence, and they ordered Lincoln to pay learned benefits. Lots of lessons here in that particular case about games that disability carriers and plans will pay with play rather with these types of cases. Got it. I hope you've enjoyed this week's episode of Winning Isn't Easy.
 
 Nancy Cavey [00:29:27]:
 Please like our page, leave a review, share it with your family and friends. And of course, subscribe to this podcast. That way you'll be notified every time a new episode comes out. I hope that you've enjoyed this week's episode and you'll tune in to next week's episode of Winning Isn't Easy. Thanks.